Citation Nr: 1534387
Decision Date: 08/12/15 Archive Date: 08/20/15
DOCKET NO. 11-08 524 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a lung condition other than asthma, claimed as secondary to the service-connected asthma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Bonnie Yoon, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from August 1980 to November 1990.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied service connection for bronchopneumonia. In light of the diagnoses of record, however, including of bronchopneumonia and bacterial pneumonia, the Board has recharacterized this claim to encompass all diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).
In February 2015, in support of this claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board - in other words at a Travel Board hearing. A transcript of the hearing is in the claims file, so of record. VA processed this appeal entirely electronically using Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems. Accordingly, consideration of this appeal must take into account these electronic records.
The claim requires further development before being decided on appeal, so the Board is REMANDING it to the Agency of Original Jurisdiction (AOJ).
REMAND
The Veteran contends that he has a lung condition other than asthma that is secondarily related to his service, especially by way of his service-connected asthma. Service connection is permissible on this secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Establishing entitlement to service connection on this secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
The Veteran underwent a May 2009 VA respiratory system examination, and the examiner was asked to comment on the relationship between bronchial pneumonia and asthma. The examiner provided an opinion that bronchial pneumonia was not caused by or related to bronchial asthma. As rationale, the examiner explained that bronchial asthma was generally an episodic disturbance that was not associated with the "increased frequency of significant pneumonia." Exacerbations of asthma caused by bronchitis was common but incidences of pneumonia were not. However, the examiner's rationale for the negative opinion is inadequate. The rationale discusses why the Veteran's asthma was not caused by pneumonia, which is inconsistent with the examiner's opinion.
The Veteran also submitted a March 2015 statement from Dr. E.S., a private physician. Dr. E.S. noted that he had reviewed the Veteran's service treatment records (STRs) and treatment records since separation from service. The opinion provided was that the current disabilities - asthma, allergic rhinitis, and bacterial pneumonia - were as least as likely as not caused by or the result of "asthma, recurrent pneumonias (service connected)." The rationale provided was that "pneumonias have been associated in increased frequency with diagnosis and treatment for chronic intermittent asthma, and exacerbations therein." Dr. E.S.'s wording of the opinion is unclear and confusing and does not specifically identify what disability was as least as likely as not caused by the "(service connected)" disability. Additionally, the rationale is a conclusory statement and thus insufficient to establish service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (noting that a "mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion").
Because of the inadequacies of the opinions of record, the Board finds that the Veteran should be afforded another VA compensation examination to determine, in light of all the evidence of record, whether his current lung condition other than asthma is related to his service-connected asthma. Additionally, he should be provided an opportunity to obtain a supplemental opinion and further explanation from Dr. E.S., the private doctor who provided the March 2015 opinion. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011).
The Veteran should also be provided opportunity to identify any relevant private or VA treatment records pertaining to the disabilities at issue in this appeal, and to furnish VA with the necessary authorization to request private treatment records on his behalf or to submit these records himself.
Accordingly, this claim is REMANDED for the following action:
1. Request the Veteran to identify any relevant treatment records pertaining to his lung condition. Then take appropriate steps to secure copies of any treatment records identified by the Veteran that are not currently in the file, including all VA treatment records and any private treatment records for which the Veteran has furnished the necessary authorization. If any of these records cannot be obtained, all efforts to obtain them must be documented in the claims file, including any negative responses received, and the Veteran must be notified of this fact, and that he is ultimately responsible for providing the records.
2. Advise the Veteran that he may submit a supplemental medical opinion from Dr. E.S. (who provided the March 2015 opinion), which specifically identifies what disability is as least as likely as not caused by the "(service connected)" disability. Dr. E.S. should also specifically identify the "(service connected)" disability, and provide further explanation regarding his statement that "pneumonias have been associated in increased frequency with diagnosis and treatment for chronic intermittent asthma, and exacerbations therein."
3. Upon receipt of all additional records, schedule a VA compensation examination for further medical comment concerning the nature and etiology of the Veteran's lung condition (other than asthma, claimed as secondary to the service-connected asthma). This particularly includes the allergic rhinitis and bacterial/bronchial pneumonia that additionally have been diagnosed. His electronic claims folder must be reviewed by the examiner in conjunction with the examination for the history of this disability. All tests and studies deemed appropriate should be performed, and all clinical findings reported in detail.
The examiner should render an opinion on the likelihood (very likely, as likely as not, or unlikely) that the Veteran's lung condition other than asthma was caused by or the result of his service-connected asthma.
Additionally, however, the examiner must provide an opinion on the likelihood (very likely, as likely as not, or unlikely) that the Veteran's lung condition other than asthma, even if not causing, is alternatively being aggravated by his service-connected asthma.
For secondary service connection claims, two opinions are required:
(1) Is the claimed disorder "caused by" or "due to" the service-connected disability? AND
(2) Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)?
Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected disability (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b).
The term "as likely as not" means at least a 50 percent probability. It does not, however, mean merely within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
The examiner must discuss the underlying rationale of the opinion, whether favorable or unfavorable to the claim, citing to specific evidence in the file supporting conclusions.
4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied or is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.
The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).